Citation Nr: 1752277	
Decision Date: 11/15/17    Archive Date: 11/22/17

DOCKET NO.  13-31 621	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania


THE ISSUES

1. Entitlement to service connection for bilateral sensorineural hearing loss

2. Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

Natasha N. Pendleton, Associate Counsel
INTRODUCTION

The Veteran had active military service in the U.S. Air Force from September 1969 to December 1971. The Veteran is decorated, having received the Vietnam Service and Campaign Medals as well as a Combat Action Ribbon, among others awards. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2013 decision by the Department of Veterans Affairs (VA) Regional Office in Pittsburg, Pennsylvania. 

In April 2014, the Veteran testified at a video hearing before the undersigned Veterans Law Judge; the Veteran appearing before the Board in Pittsburgh, Pennsylvania and the undersigned from Central Office in Washington, D.C. 
A transcript of the hearing is associated with the claims file. (Hearing Transcript). 

In a June 2015 Board decision, the matter was remanded for additional development; namely the receipt of treatment records from 1989 forward from VA Medical Center in Erie, Pennsylvania.  The records were received February 2016 and primarily comprise of unrelated mental health notes.  The matter properly returns to the Board for adjudication. The following discussion focuses solely on the claims for bilateral sensorineural hearing loss and tinnitus.


FINDINGS OF FACT

1. Bilateral sensorineural hearing loss is etiologically related to service. 

2. Tinnitus is etiologically related to service. 

CONCLUSION OF LAW

1. The criteria for service connection for sensorineural bilateral hearing loss have been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.303, 3.309 (2017).  

2. The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran contends that his current hearing loss and tinnitus is related to his period of service.  At the April 2014 hearing, the Veteran testified that he was in construction occupations but also engaged in combat with the enemy on two occasions while deployed in Vietnam. He testified that he first noticed the ringing in his ears after being in close proximity to an explosion, just prior to his return home to the United States.  The ringing lasted for three days consistently, and has been intermittent ever since. He also has had difficulty with hearing background noises since that explosion. Post-military, the Veteran continued in the construction field professionally and asserts that his occupations have not had significant noise exposure. He did not seek treatment for hearing loss or tinnitus because it lessened, in part. He was prescribed hearing aids in 2012. 

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. Establishing service connection generally requires competent evidence of three things:
(1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366  
(Fed. Cir. 2009); 38 C.F.R. § 3.303(a) (2015). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 
38 C.F.R. § 3.303(d).

For combat veterans, as defined under 38 U.S.C. § 1154(b), lay evidence alone can establish in-service element of service connection, Element 2,  if consistent with the circumstances, conditions or hardships of such service, even if there is no official record. 38 C.F.R. § 3.304(d). (See also VAOPGCPREC 12-99).  This is commonly referred as "the combat presumption."  38 U.S.C.A § 1154(b) does not establish service connection for a combat Veteran; but rather aids him in relaxing the adjudicative evidentiary requirements for determining what happened in service. Clyburn v. West, 12 Vet. App. 296, 303 (1999). 

Additionally, certain chronic conditions, including sensorineural hearing loss and tinnitus, will be presumed to have incurred in service if they manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. 
§§ 1101, 1137 C.F.R. §§ 3.309(a-b) and 3.307(a)(2-3) and 3.307(a)(6) (2017). 
See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As an alternative to the nexus requirement, service connection for a chronic disability may be established through a showing of continuity of symptomatology since service. 38 C.F.R. 
§ 3.303(b). 

The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth at 38 U.S.C.A. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518 (1996).

Upon review of the record, the Board finds that the evidence of record is in at least equipoise; service connection is warranted for both claims. 

A. Bilateral Sensorineural Hearing Loss

With respect to element (1), a current disability, impaired hearing will be considered to be a disability when auditory thresholds in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC test are less than 94 percent. 
38 C.F.R. § 3.385. 

The Court has held that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss - even if not sufficient hearing loss to be considered an actual ratable disability according to 
§ 3.385. Hensley v. Brown, 5 Vet. App. 155, 159 (1993).

In September 2012, the Veteran underwent a VA audiological examination, where he reported a history of hearing difficulty. Diagnostic testing indicated that the Veteran has current hearing loss, with pure tone thresholds as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
15
55
60
LEFT
15
10
30
55
65

Utilizing the Maryland CNC word list, the Veteran had a speech discrimination Score of 96 percent in each ear. These results are consistent with statutory hearing loss for VA purposes. The Board finds that the testing is adequate.  Therefore, the criteria for element (1) of service connection have been met.

Turning to element (2), in-service incurrence of the condition, the Veteran testified during his April 2014 Board hearing that he was exposed to noise from an explosion while in combat in Vietnam.  During the April 1969 enlistment examination, his hearing was noted as normal. (See June 2015 - STRs - Medical p. 19). Audiometry testing indicated nearly no abnormalities, with the following pure tone thresholds:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
0
0
0
5
LEFT
0
0
0
0
0

However, by the end of his active duty service, the September 1971 separation examination audiometry testing pure tone threshold readings were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
15
15
20
25
LEFT
20
15
20
15
20

Id. at 5. While not rising to the level of a ratable hearing loss disability, the Veteran nonetheless sustained some degree of hearing loss. Hensley, 5 Vet. App. At 155, 159. Given the Veteran's credible testimony that he sustained hearing loss as a result of combat, he must be afforded the relaxed burden of evidentiary proof. His hearing loss is presumed to have occurred in combat. Therefore, element (2) has been met.

Element three (3) of service connection, a nexus, has also been met.  In the September 2012 VA audiological examination, the examiner noted that he could not provide a medical opinion regarding the etiology of his hearing loss without resorting to speculation.  In the November 2012 VA examination, the examiner submitted a supplemental opinion determining the Veteran's current hearing loss was likely not the result of noise exposure while in the military. However, he admitted "it appears there was some type of artifact that affected the Veteran's hearing in the low frequencies at the release from active duty examination." The examiner's reasoning is in direct conflict with his ultimate findings.  He acknowledged the Veteran's hearing was affected by his service and was noted on his September 1971 separation examination. As such, the opinion rendered is inconsistent with the facts of the case and is of little probative weight. 

Given that there is no other opinion evidence of record, the Board must weigh the inconsistent VA examiner's opinion against that of the consistent statements of the Veteran. In doing so, the Board finds the Veteran's claim to be persuasive.

Thus, the Board finds the evidence, to be in relative equipoise in showing the Veteran's current hearing loss condition is the result of military service. After applying the benefit of the doubt doctrine, the claim must be granted. 38 U.S.C.A. §5107(b); 38 C.F.R. § 3.102.

B. Tinnitus

Concerning the first element for service connection, the criteria have been met. The Veteran has asserted having a long history of ringing of in his ears.  While there is no objective medical test to discern the veracity of his statements, the Board finds the Veteran's lay statements to be highly credible due to his consistency throughout the record. 

The second element for service connection, in-service occurrence, is also met. The Court has held that a Veteran is competent to testify to in-service acoustic trauma, in-service symptoms of tinnitus, and post-service continuous symptoms of tinnitus "because ringing in the ears is capable of lay observation." Charles v. Principi, 16 Vet. App. 370, 374-75 (2002).At the hearing, the Veteran provided testimony, in great detail, consistent with the circumstances, conditions and hardships of such service. Specifically, he testified that he engaged combat with the enemy on two occasions. Once, he ran his M-60 for about 2,000 rounds. The barrel heated and was blazing from excessive usage. The cobra came behind them and shot off 30 rockets. During that attack, he lit a device called "foo gas," consisting of aviation fuel in a barrel. It is ignited with an electrical charge. Shortly after doing so, he began experiencing ringing in his ears.  

On the second occasion, he experienced a surprise attack while watching a movie outdoors on his final night of active duty. While he did not sustain any physical injuries, he had ringing in his ears consistently for three days afterwards. It ultimately subsided, but reoccurs intermittently. The Veteran's DD 214 confirms his military occupational status that he worked in construction, but also cites that he received a combat action ribbon, indicating he did, at least at one point, work in a combat capacity. Given the consistency of his statements to his military records, the Veteran's tinnitus is presumed to have occurred in combat. 

As for element three, nexus, the criteria has been met. In the aforementioned September 2012 VA examination, the Veteran reported a long history of tinnitus. The examiner asserted he could not provide a medical opinion regarding the etiology of the Veteran's tinnitus without resorting to speculation. In November 2012, the examiner opined that due to the lack of high frequency hearing loss, which is indicative of the possibility of the condition of tinnitus, the Veteran's tinnitus is also not etiologically related to military service. The use of the term "possibility" without any supporting rationale, study or data, is too speculative to support an award or, in this case, a denial of benefits.  A speculative medical opinion provides neither positive nor negative support for the Veteran's claim.  Fagan v. Shinseki, 573 F.3d 1282, 1289 (Fed. Cir. 2009); Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009) (use of the phrase "may well be" with the caveat that he was not an expert on causation was speculative); Bloom v. West, 12 Vet. App. 185, 187 (1999) (use of the term "could," without other rationale or supporting data, is too speculative to support award of benefits); and Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (holding that medical opinions are speculative and of little or no probative value when a physician makes equivocal findings such as "the veteran's death may or may not have been averted"). As such, the examiner's opinion fails to provide any probative value as to the Veteran's claim.  

With no other medical opinions of record, the Board must weigh the Veteran's consistent lay statements against the examiner's faulty opinion, and in doing so, finds the Veteran's claim to be persuasive. 

The Board finds the evidence, to be in relative equipoise in showing the Veteran's current tinnitus condition is the result of military service. After applying the benefit of the doubt doctrine, the claim must be granted. 38 U.S.C.A. §5107(b); 38 C.F.R. § 3.102.



ORDER

Entitlement to service connection for bilateral sensorineural hearing loss is granted.

Entitlement to service connection for tinnitus is granted.




____________________________________________
MATTHEW TENNER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs